Antiquated copyright law scored a victory in Android-Java suit -- and brought bad news for U.S. competitiveness

Today, the jury in the case by ruling in favor Oracle against Google over Android's use of Java demonstrated how badly the copyright laws of the 19th and 20th century fit the technology market of the 21st century. The jury found that Google had infringed Oracle's copyrights on the overall design of Java (procured by Oracle in its purchase of Sun Microsystems), but Google's use of the Java documentation did not infringe -- and it was unable to determine whether Google's usage was justified as "fair use," which is a legally acceptable form of infringement.

It's hard to imagine another, similar case on the scale of Oracle versus Google, so it's remarkable that an almost identical one came to resolution in Europe at almost the same time. SAS Institute sued World Programming for copyright infringement in what seems like a much more clear-cut case than Oracle versus Google. World Programming copied the SAS programming environment with the intent of direct competition, yet the court did not find against World Programming.

Although the case has nuances, the court was clear that although software itself could be copyrighted, its externalities -- the function it performs, the programming interfaces it exposes, and the data structures it uses -- cannot be. This is entirely reasonable. Without such a division, interoperable technology markets would be impossible.

The finding in Oracle-Google case seems to fly in the face of this clear and reasonable approach, as well as being less clear-cut. Google's work on Android is in an area where Sun's Java ME technology was clearly failing. The platform was hopelessly fragmented by every handset vendor implementing device-specific programming interfaces and features; application programmers targeting mobile Java had no hope of writing once and running everywhere. While Google built on the foundation of Java's approach to virtual machines and class libraries, it neither cloned the code from Java ME nor fragmented the market.

In fact, despite a wide diversity of deployments of Android (which some try to represent as "fragmented"), the market displays an amazingly level playing field for all application developers -- so much so that even a complete fork of Android for Amazon.com's Kindle Fire is still able to run the majority of Android applications from Google's Play market unmodified, a feat that would have been almost impossible on Java ME.

Further, the market for Java ME still exists. Oracle is even aiming its new spin on JavaFX at that market. Unlike in the SAS-World Programming case, there seems to be limited fragmentation, limited direct competition, and no attempt to copy wholesale. For U.S. law to find against Google, with or without a "fair use" defense, bodes ill for the American technology industry.

A disparity between the copyright regimes in the United States and Europe could have a serious impact on the competitiveness of the market for software innovation and provide a further impetus for the migration of jobs abroad. While Judge Alsup could still decide that despite the jury's ruling there is in fact no copyright case to answer, the fact the question could even arise is a cricial signal. If there's one lesson from this case, it's that American copyright law is in urgent need of a review in the light of the 21st-century technology market. We already knew that in connection with books, music, and movies; we now know it in connection with software, too.